Case Name: Rodriguez v. United Site Services of California, Inc.
Case No.: 1-13-CV-257373

This is a putative class action. Defendant United Site Services of California, Inc. (“Defendant”) rents and installs temporary construction fixtures such as port-o-potties, temporary fencing, and trailers. (Complaint, ¶ 1.) Plaintiff Jose Rodriguez (“Plaintiff”), a former fence erector for Defendant, brings this class action on behalf of himself and all other present and former employees of Defendant who have been employed in part to transport and erect and/or dismantle fences on public works projects at any time since four years prior to the filing of this action. (Complaint, ¶ 1.)

The Complaint sets forth the following causes of action: [1] Failure to Pay Overtime Wages; [2] Failure to Pay Minimum Wage; [3] Failure to Pay All Wages Due: Missed Meal Periods; [4] Failure to Provide Meal Periods; [5] Failure to Provide Rest Periods; [6] Failure to Provide Accurate Wage Statements; [7] Waiting Time Penalties; [8] Unfair Competition; and [9] Declaratory Relief. On June 12, 2015, this Court issued its Order granting class certification. On or about September 1, 2015, the parties mediated the case with Retired Judge Jamie Jacobs-May and were able to negotiate a settlement agreement that was subsequently reduced to writing.

On or about November 12, 2016, this Court issued its Order Granting Preliminary Approval. Plaintiffs now move for Final Approval of Class Action Settlement.

Generally, “questions whether a settlement was fair and reasonable, whether notice to the class was adequate, whether certification of the class was proper, and whether the attorney fee award was proper are matters addressed to the trial court’s broad discretion.” (Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 234-235, citing Dunk v. Ford Motor Co. (1996) 48 Cal.App.4th 1794.)

In determining whether a class settlement is fair, adequate and reasonable, the trial court should consider relevant factors, such as “the strength of plaintiffs’ case, the risk, expense, complexity and likely duration of further litigation, the risk of maintaining class action status through trial, the amount offered in settlement, the extent of discovery completed and the stage of the proceedings, the experience and views of counsel, the presence of a governmental participant, and the reaction of the class members to the proposed settlement.”

(Wershba v. Apple Computer, Inc., supra, 91 Cal.App.4th at pp. 244-245, citing Dunk, supra, 48 Cal.App.4th at p. 1801 and Officers for Justice v. Civil Service Com’n, etc. (9th Cir. 1982) 688 F.2d 615, 624.)

“The list of factors is not exclusive and the court is free to engage in a balancing and weighing of factors depending on the circumstances of each case.” (Wershba v. Apple Computer, Inc., supra, 91 Cal.App.4th at p. 245.) The court must examine the “proposed settlement agreement to the extent necessary to reach a reasoned judgment that the agreement is not the product of fraud or overreaching by, or collusion between, the negotiating parties, and that the settlement, taken as a whole, is fair, reasonable and adequate to all concerned.” (Ibid., quoting Dunk, supra, 48 Cal.App.4th at p. 1801 and Officers for Justice v. Civil Service Com’n, etc., supra, 688 F.2d at p. 625, internal quotation marks omitted.)

The burden is on the proponent of the settlement to show that it is fair and reasonable. However “a presumption of fairness exists where: (1) the settlement is reached through arm’s-length bargaining; (2) investigation and discovery are sufficient to allow counsel and the court to act intelligently; (3) counsel is experienced in similar litigation; and (4) the percentage of objectors is small.”

(Wershba v. Apple Computer, Inc., supra, 91 Cal.App.4th at p. 245, citing Dunk, supra, 48 Cal.App.4th at p. 1802.)

“Although [t]here is usually an initial presumption of fairness when a proposed class settlement … was negotiated at arm’s length by counsel for the class, … it is clear that the court should not give rubber-stamp approval. Rather, to protect the interests of absent class members, the court must independently and objectively analyze the evidence and circumstances before it in order to determine whether the settlement is in the best interests of those whose claims will be extinguished. To make this determination, the factual record before the … court must be sufficiently developed… . The proposed settlement cannot be judged without reference to the strength of plaintiffs’ claims. The most important factor is the strength of the case for plaintiffs on the merits, balanced against the amount offered in settlement. The court must stop short of the detailed and thorough investigation that it would undertake if it were actually trying the case, but nonetheless it must eschew any rubber stamp approval in favor of an independent evaluation.” (Kullar, supra, 168 Cal.App.4th at p. 130, internal citations and quotation marks omitted.)

Under the terms of the settlement, Defendants will pay the sum of $248,600 less settlement administration costs in the sum of $8373 and a class representative payment in the sum of $10,000. In addition, Plaintiff will be paid the amount of $1400 in exchange for his release of his individual meal and rest break claims that are otherwise not being release by any other class member. The Proposed Settlement is a cash settlement and does not require class members to submit claims forms. In addition, Defendants will pay its share of payroll taxes (approximately $13,548) on this amount and any residual amount resulting from uncashed checks will be re-distributed to class members if it is more than $20,000 and will be distributed to the cy pres beneficiary, Katharine and George Alexander Community Law Center, if it is less than $20,000. Finally, Defendants have agreed to make a separate payment for attorneys fees in the amount of $200,000.

As noted in the Preliminary Approval Order, the Proposed Settlement is entitled to a presumption of fairness. In their moving papers, Plaintiffs contend that the Proposed Settlement was the product of arms-length negotiations following extensive litigation through the class certification stage and following extensive discovery and exchange of documentation relating to the claims made by Plaintiffs. Moreover, the negotiations were facilitated with the assistance of a skilled and experienced mediator, Jamie Jacobs-May. With respect to the benefit to the Class Members, Plaintiffs moving papers indicate that the average settlement award will be $2398.20 given the proposed allocation that is based on the number of weeks individual class members worked and whether they were subject to USS’ Policy to automatically deduct 30 minutes of work time for meal periods. The moving papers also outline the risks and costs associated with continuing with the litigation and the benefits conferred upon Class Members in the form of immediate compensation. Plaintiffs’ moving papers include a chart which sets forth the maximum exposure of the certified claims and states that the Proposed Settlement will equitably allocate the available funds in relation to the degree of damage each class member has incurred. Finally, the Declaration of the Settlement Administrator, Stephanie Molina (Operations Manager for the ILYM
Group, Inc.), states that Notices were sent to all 96 members and there were no objections to the Settlement. This is further proof of the fairness of the Settlement. The Declarations of Jonathan Gertler and Tomas Margain provide sufficient information about class counsel’s experience in litigating class action lawsuits

The Court also has an independent right and responsibility to review the requested attorney’s fees and only award so much as it determines reasonable. (See Garabedian v. Los Angeles Cellular Telephone Co. (2004) 118 Cal.App.4th 123, 127-128.) The amount of attorney’s fees requested by Class Counsel is in the sum of $200,000 and is separate from the settlement proceeds referenced above. At the time of preliminary approval, the Court requested further information from Class Counsel in order to conduct a lodestar cross-check. According to the Declaration of Jonathan Gertler, Class Counsel expended 823.6 hours with a total lodestar figure of $491, 781. The requested award of $200,000 is well below this figure and represents approximately 36% of the fees incurred. The Court finds that the fee request is reasonable and it is therefore approved.

The rationale for making enhancement or incentive awards to named plaintiffs is that they should be compensated for the expense or risk they have incurred in conferring a benefit on other members of the class. An incentive award is appropriate if it is necessary to induce an individual to participate in the suit. Criteria courts may consider in determining whether to make an incentive award include: 1) the risk to the class representative in commencing suit, both financial and otherwise; 2) the notoriety and personal difficulties encountered by the class representative; 3) the amount of time and effort spent by the class representative; 4) the duration of the litigation and; 5) the personal benefit (or lack thereof) enjoyed by the class representative as a result of the litigation. These “incentive awards” to class representatives must not be disproportionate to the amount of time and energy expended in pursuit of the lawsuit. (Cellphone Termination Fee Cases (2010) 186 Cal. App. 4th 1380, 1394-1395, quotation marks, brackets, ellipses, and citations omitted.)

The Court has reviewed the Declaration of Jose Rodriguez which outlines his involvement in the lawsuit. Mr. Rodriguez states that he has spent over 60 hours on the lawsuit over a two and a half year period. Given the risks of being identified as a class representative and the duration of the case and time involved, the Court approves the incentive payment of $10,000.

For the reasons set forth above, the Motion for Final Approval of Class Action Settlement is GRANTED.